Welch v. Louis

• Decision Date: 30 April 1863
• Citation: 1863 WL 3128,31 Ill. 446
• Parties: THOMAS WELCHv.JOHN LOUIS et al.
• Court: Illinois Supreme Court

31 Ill. 446

1863 WL 3128 (Ill.)

THOMAS WELCH

v.JOHN LOUIS et al.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Tazewell county; the Hon. JAMES HARRIOTT, Judge, presiding.

This was an action of trespass quare clausum fregit instituted in the court below by Thomas Welch against John Louis, Margaretta Louis and Mary L. Hammond. The defendants pleaded not guilty, and liberum tenementum.

The principal facts in the case will be found in the opinion of the court.

But a question arises as to the validity of certain proceedings in a suit in chancery, under which defendants claimed title to the locus in quo, which were had after the cause had been stricken from the docket, and after the original parties to the suit had died. Those proceedings will be understood from the following statement: It appears the suit in chancery was instituted in 1839, by John Florent Louis, the ancestor of the defendants, against Francis Clement, from whom the plaintiff derives title, to enforce the specific performance of a written agreement which provided for a division between the contracting parties of a parcel of ground including the locus in quo. The suit progressed to a final decree, which was entered in 1841, directing a division of the land, and that each party should convey to the other the portion to which he was entitled under the decree. The parties refusing to execute that decree, at a subsequent term, the court directed the conveyances to be made by a commissioner appointed for that purpose. Afterwards, at the September term, 1842, the cause was stricken from the docket. No further proceedings were had in relation to that suit until April, 1852, when a decretal order was made in the cause, reciting that the commissioner had failed to execute the former decree, and that the original parties to the suit had died in 1848, leaving certain persons, who were named, as their heirs at law, respectively, and directed the same commissioner to execute conveyances to those heirs, respectively, according to the rights of their ancestors, as found in the decree rendered in 1841. At the same term the commissioner reported to the court that he had executed the conveyances to the heirs mentioned, as directed, and that report was entered of record. But it does not appear that the report was approved by the court.

The defendants claimed title under the deed executed to them by the commissioner under the authority mentioned.

All the other features of the case are set forth in the opinion of the court.

The trial in the court below resulted in a verdict and judgment for the defendants, and thereupon, Welch, the plaintiff, sued out this writ of error.

Messrs. COOPER & MOSS, for the plaintiff in error.

Mr. B. S. PRETTYMAN, for the defendants in error. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of trespass to land, brought by the plaintiff against the defendants, in the Tazewell Circuit Court. To the action the defendants pleaded not guilty and a special plea, that the close, etc., was their soil and freehold. The jury found the issues for the defendants, and a judgment was rendered against the plaintiff for the costs. A motion for a new trial was made and overruled, a bill of exceptions signed, and the case brought here by a writ of error, and various errors assigned, which will be disposed of as we proceed.

The facts of the case appear to be substantially these. One Moushon, in 1832, entered upon the land including the locus in quo, while it belonged to the United States, and made some improvements in the north-west fractional quarter, and on the north-east fraction also. He built a stable and made a small field on the south part of the north-west, and a house on the south part of the north-east fractional quarter, on the east side of the road dividing the two fractions, and near the south line of the quarter. Moushon sold these improvements to Francis Clement, in 1834, who, thereupon, went into possession. Whilst Moushon occupied, the father of the defendants, John Florent Louis, lived with him, and made an improvement on the hill fraction, in the south half of the north-east quarter, and in the north-west corner, and east of the road; he built his house near the north line of the south half, and inclosed a small field of about two acres, on the west side of the road near his house. This field he cultivated one year. It was low ground, and the next year the water washed off most of the fence; Louis then removed the remainder, and used the rails in making a fence around a field on the east side of the road. It appears this road ran north and south on the line dividing the north-west from the north-east fractional quarter until near the north-west corner of the south half of this quarter, when it inclined to the east, and left about two acres of this tract west of the road.

The land was public land, and on the 26th of July, 1836, Clement and John Florent Louis entered into a written agreement, reciting that they had obtained from the Land Office a certificate of purchase for the north-east fractional quarter; and for the purpose of making a division of it between them, Clement agreed to convey to Louis the north half of the quarter, and Louis agreed to convey to Clement the south half, “the intention being that each party shall retain his improvements,” and to effect that object, it was agreed that the land should be surveyed, and if it was found by the survey that Louis' improvement was on the south half of the quarter, then it should be conveyed to him by Clement; and in return therefor, Louis should convey to Clement an equal number of acres out of the north half; and if any part of the improved land of Clement should be found to be in the north half of the quarter, then Louis was to convey it to him, taking himself an equal quantity from the south half. They also agreed to convey to each the improvement which each might have on the small fraction of fourteen acres attached to the land described in the agreement.

As was frequently the case about the time of this agreement, parties who had proved up their pre-emption, so disposed of their claims as to enable another party to make payment and procure the certificate of purchase from the United States, and which, we infer, was the course pursued in this case, for one John W. Casey entered and purchased the whole of the north fractional half of section twelve containing one hundred and sixty-five and eighty one hundredths acres, and, it is admitted by the parties to this suit, became the undisputed owner thereof. Casey, on the 20th of May, 1837, by deed of that date, duly recorded on the 2nd of August, 1837, sold and conveyed the same to Clement.

Clement continued to occupy the south part of the northeast fractional quarter, and of the field on the north-west fractional quarter, cultivating it, taking wood from that part of it not inclosed, and exercising such acts of ownership over it as is usual and customary by owners or claimants of unoccupied land, though his right was denied by Louis. After his death, in July, 1848, his children and heirs at law, continued such occupancy, until the fifth of February, 1858, when they sold and conveyed, by deed of that date, to the plaintiff, the south half of the north-east quarter, containing seventy-five and fifty one hundredths acres, and the northwest fractional quarter, containing fourteen acres more or less, under which deed the plaintiff went into possession, and was in possession at the time of suit brought. John Florent Louis died in March, 1848, leaving these defendants, his heirs at law, who occupy as their ancestor did.

It appears that Louis, the ancestor of these defendants, had, in his lifetime and the defendants since his death, disputed the right of Clement to this fraction, and while it is not proved that they themselves ever exercised any unequivocal acts of ownership over it, they have prevented the plaintiff from extending his fields over the north part of the fraction, and from inclosing it for any purpose. It is in proof, no portion of the fraction north of plaintiff's field has ever been inclosed.

With a view to an exclusive appropriation of the north part of this small fraction, the plaintiff, before the commencement of this suit, commenced to build a paling fence on the east line of it with poles cut from this land, when the defendants interposed and tore it down. The design was, to inclose all the vacant portion of the fraction, which was prevented by the violent acts of the defendants. One year before, including the time laid in the declaration, it appears, that one of the defendants tore down the fence on the north side of the field in two different places; at one place near the river, where the plaintiff was repairing the damages occasioned by high water, in doing which, he placed his fence somewhat farther north than it had been, which Margaretta, one of the defendants, tore down. The other place was at the north-east corner of this field by the road, when the same defendant tore down several pannels of fence,--of the old fence which had been made by Moushon and had stood there at the time of the purchase by Clement and ever since. This field, inclosed in part by this fence, it appears, has been in the actual and undisturbed possession of the plaintiff and those under whom he claims, for about twenty-six years, and at the point where the trespass was committed, the fence stood where it was placed before the sale to Clement in eighteen hundred and thirty-four.

These are the main facts of the plaintiff's case.

The defendants, to maintain the issues on their part, introduced as evidence, against the objection of the plaintiff, certain proceedings in chancery, originating in 1839, wherein John Florent Louis was complainant, and Francis Clement was defendant, and which, at the September term, 1839, resulted in an interlocutory decree.

The bill on...